What would you call it when a former government official joins a corporate law firm? This is commonly known as revolving doors between market and politics in the United States but, in France, it has a different name: pantouflage. As Antoine Vauchez and Pierre France explain in their book The Neoliberal Republic: Corporate Lawyers, Statecraft, and the Making of Public-Private France, pantouflage “bears a different meaning than revolving doors as it does not imply moving back and forth but rather a departure from the public sector.” (P. 55.) Such a departure of professionals from the public sector is also a familiar scene in other countries, such as China, where hundreds of mid-career judges, procurators, and other state officials leave their government or judicial posts to become lawyers in private firms every year.1
Most existing studies on these professionals traveling between the public and private sectors emphasize either the personal benefits that they get from their “political embeddedness” or the economic consequences of their brokerage between state and market for their clients.2 Vauchez and France also observe similar dynamics in France, yet the focus of their book is on the structural consequences of pantouflage, namely, the blurring of the “border between public and private.” (P. 132.) Drawing on Michael Walzer’s theory of normative social differentiation,3 which proposes that the democratic space is made possible by the separation of the public sphere from other social , the authors argue that “the blurring of the public-private dividing line…calls into question the very conditions in which the public interest is defined.” (Pp. 132-133.) They even pose the question of whether the rise of pantouflage since the 1990s has punched “a black hole in democracy.” (P. 117.)
Arguably, this emergence of the so-called “neoliberal republic” is not unique to France. As neoliberalism swept the globe after the Washington Consensus in 1989, corporate law firms became active agents in the globalization of law and we have witnessed the circulation of legal elites between these law firms and other political, economic, and financial institutions across the world.4 To a large extent, the global presence of elite corporate law firms in the economy and is a telling indicator of the boundary blurring between the public and private spheres in the age of neoliberalism. As law firms recruit former officials from powerful ministries and, in the meantime, , financial institutions, business corporations, and international organizations, they penetrate the borders between distinct social spaces and make the logics of these spaces increasingly similar. The construction of isomorphism between market and state, therefore, is not only a structural phenomenon but also a cultural process by which the neoliberal ideology diffuses from the global market to nation-states and their officials.
Yet the rise of corporate lawyers in governance has different implications in France than in Anglo-American countries where the legal profession has always been a dominant force in national and local politics. Half a century ago, French legal workers were fragmented into several different occupational groups such as avocats, notaires, avoués, agréés, and conseils juridiques. It was only through two reforms in 1972 and 1990 that some of those groups were unified into the profession of avocats (while notaires remain a separate profession).5 The merger of avocats and conseils juridiques in 1990 was particularly consequential for the rise of corporate law firms as it produced a unified legal elite and opened the French bar to tax specialists in legal counseling firms. The entry of major US and UK law firms into Continental Europe coincided with this merger and “upended the quasi monopoly that had been the prerogative of the handful of French corporate law firms.” (P. 22.) As the authors describe it, this was “[t]he big bang that set in motion the creation of the French business bar.” (P. 22.)
This development of the corporate bar may the French case more comparable to the stories of emerging markets than to the English or American cases. As David B. Wilkins, David M. Trubek, and Bryon Fong suggest in their recent summary of the findings of the GLEE (Globalization, Lawyers, and Emerging Economies) Project, the rise of corporate law firms also occurred in Brazil, India, and China in the 1990s and these firms became a major gear for globalization and legal change in those three countries.6 The French story might sound exotic to an American audience, but it would feel quite familiar to a partner of a Chinese or Brazilian corporate law firm. Perhaps what sets France apart is that these elite law firms have not only dominated the business world but also penetrated the highest level of the French state, namely the Conseil d’État, by offering its officials a lucrative exit route. This is precisely the “black hole in democracy” that the authors emphasize in their book.
Why is the penetration of the state by business law firms problematic for democracy? To be sure, lawyers are only one of many competing groups of professionals in the “palace wars” of the state bureaucracy, and they often lose such wars to economists or engineers, in France and elsewhere.7 However, it is important to note that the legal profession, especially its prestigious corporate sector, has a high degree of social closure. Most corporate lawyers come from privileged social backgrounds and embody the neoliberal ideology in their work. Consequently, the increasing influence of the business bar could potentially make the state less open to the public. This is especially ironic given the history of avocats as the “spokesmen of the public” in nineteenth-century France who resisted the commercial logic of the market, as Lucien Karpik shows in his pioneering work on French lawyers.8
In addition to the implications of the book for understanding law and democracy, the phenomenon of pantouflage also speaks to a long-standing blind spot in the Bourdieusian field-theoretic approach, which the authors adopt in the book to explain the relationship between the legal profession and the state. While Bourdieu used extensively the concept of “homology” to describe the structural isomorphism between fields, he had not developed a theoretical framework for explaining how fields are connected or the spaces between fields. The pantouflage of professionals from the bureaucratic field to the legal field (or business field) suggests the importance of focusing on “space travelers” between fields for understanding their mutual relations.9 Although lawyers are traditionally considered to be either guardians of professional monopoly or brokers of economic and political transactions, their mobility between different social spaces is equally important for making sense of the legal profession in relation to other social entities such as the state and the global market. When revolving doors are open, space travelers pass through them and connect the adjacent fields of power and money. In this sense, pantouflage has a similar processual logic to the logic of judicial corruption, which often involves former state officials who can breach the institutional walls of judicial independence.10 To trace the spatial mobility of lawyers, therefore, is a promising approach for advancing the study of the legal profession, as this excellent book demonstrates.
- Jonathan J. Kinkel, High-End Demand: The Legal Profession as a Source of Judicial Selection Reform in Urban China, 40 Law & Soc. Inquiry 969 (2015); Chunyan Zheng, Jiahui Ai, and Sida Liu, The Elastic Ceiling: Gender and Professional Career in Chinese Courts, 51 Law & Soc’y Review 168 (2017), available at Wiley.
- Ethan Michelson, Lawyers, Political Embeddedness, and Institutional Continuity in China’s Transition from Socialism, 113 Am. J. of Soc. 352 (2007), available at JSTOR.
- Michael Walzer, Liberalism and the Art of Separation, 12 Pol. Theory 315 (1984), available at JSTOR.
- Carole Silver, The Case of the Foreign Lawyer: Internationalizing the US Legal Profession, 25 Fordham Int’l L.J. 1039 (2001).
- Lucien Karpik, French Lawyers: A Study in Collective Action, 1274 to 1994 (1999).
- David B. Wilkins, David M. Trubek, and Bryon Fong, Globalization, Lawyers, and Emerging Economies: The Rise, Transformation, and Significance of the New Corporate Legal Ecosystem in India, Brazil, and China, 61 Harvard Int’l L.J. 281 (2020), available at SSRN.
- Yves Dezalay and Bryant G. Garth, The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States (2002).
- Supra note 5.
- Sida Liu, Between Social Spaces, 24 Eur. J. of Soc. Theory 123 (2021), available at SAGE.
- Juan Wang and Sida Liu, Institutional Proximity and Judicial Corruption: A Spatial Approach, Governance, (2021), available at Wiley